Womer v. Schlottman

• Decision Date: 18 January 1926
• Docket Number: 41
• Citation: 7 Pa. D. & C. 512
• Parties: Womer v. Schlottman, Controller of Schuylkill County
• Court: Pennsylvania Commonwealth Court

7 Pa. D. & C. 512

Womer v. Schlottman, Controller of Schuylkill County

No. 41

Common Pleas Court of Schuylkill County, Pennsylvania

January 18, 1926

Petition for mandamus.

O N. Heblich and John H. Firtig, for plaintiff.

E D. Smith, for defendant.

OPINION

BERGER J.

This is a writ of alternative mandamus to compel the county controller to countersign a warrant drawn in the plaintiff's favor upon the county treasurer by the Board of Directors of the Poor for Schuylkill County, for back salary amounting to $ 3892.77. The defendant has filed an answer, to which the plaintiff has demurred. The plaintiff was appointed a director of the poor April 3, 1917, and remains in office by virtue of his election and re-election. When he assumed office there was a dispute pending concerning the salary to which a director of the poor for the County of Schuylkill is entitled, in which the controller maintained that the salary was fixed at $ 1500 per year by the Act of June 8, 1907, P. L. 487, as amended by the Act of May 3, 1909, P. L. 382, as further amended by the Act of May 24, 1917, P. L. 293, and the plaintiff, that it is fixed at $ 2500 per year by the Act of June 12, 1907, P. L. 529, as amended by the Act of May 10, 1917, P. L. 179, both applicable to the Poor District of the County of Schuylkill only. The controller's contention that the two acts last mentioned were unconstitutional as local or special legislation was overruled by our court in Tosh v. Schlottman, Controller, 2 D. & C. 256, in an opinion filed by our brother Koch April 17, 1922. By warrants drawn monthly upon the treasury by the directors of the poor for their salaries, countersigned by the controller, the plaintiff only collected $ 100 per month as his salary from April 3, 1919, to April 1, 1922, but, by mandamus upon the controller, enforced collection at the rate of $ 2500 per year since. The controller's annual reports, showing the collection of only $ 100 monthly by the plaintiff for his salary covering the period for which the warrant for accrued salary is drawn, were all duly filed, and no appeal from them was taken. The warrant as drawn is for the difference between salary at the rate of $ 2500 per year claimed by the petitioner as his lawful salary and $ 1200 per year accepted by him for the aforementioned period.

The defendant's contention is that the reports of the county controller for the years 1919, 1920, 1921 and 1922, unappealed from, are in the nature of a final judgment against the plaintiff's claim for back salary, and a complete bar to its recovery. The plaintiff answers this contention by saying that the bar to his recovery has been removed by the Act of April 9, 1925, P. L. 222, which is as follows:

" An act providing for the payment by counties and poor districts of the salaries of officers where, pending the settlement of a dispute, the salary paid to such officer was less than the amount to which he was legally entitled.

" Section 1. Be it enacted, & c., That whenever heretofore, pending the settlement of a dispute, any county or poor district has paid to a public officer a salary for the performance of his duties, and in subsequent legal proceedings brought in a court of record by such officer during his incumbency in office it was decided that the salary of such officer as fixed by law was in excess of the amount which was being paid by the county or poor district to such officer prior to such legal proceedings, then in any such case such officer shall be entitled to receive and be paid by the county or poor district responsible for the payment of the salary of such officer an amount equal to the difference between the amount to which he was legally entitled and the amounts received prior to such legal proceedings; and no failure on the part of such officer to appeal from the annual report of any auditor or board of auditors or controller shall be held to bar his right to recover the salary to which he was legally and morally entitled: Provided, that this act shall not apply to the salary of any officer for any period prior to the first day of January, one thousand nine hundred and seventeen."

The constitutionality of the Act of 1925 is attacked by the defendant on the ground that it is local or special leg...